in Re Valliance Bank

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00255-CV
IN RE VALLIANCE BANK RELATOR
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ORIGINAL PROCEEDING
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OPINION ON RELATOR’S MOTION FOR EN BANC
RECONSIDERATION
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The court has considered the motion for en banc reconsideration filed by
Relator Valliance Bank, the response filed by Real Parties in Interest Linda R.
Tedesco and Lucille W. Shiver, and Relator‘s reply. We grant the motion for en
banc reconsideration, withdraw our opinion of June 26, 2012, and substitute the
following.
BACKGROUND FACTS
Real Parties filed the underlying suit as plaintiffs on April 23, 2008. The
trial court‘s record of filings reveals virtually no activity for two years other than
requests for discovery. The trial court placed the suit on the dismissal docket for
hearing on April 12, 2010, and issued a notice for the parties to present an
agreed scheduling order at or prior to the hearing. Counsel for Relator and the
other defendants appeared, but neither Real Parties nor their counsel appeared
at the hearing, nor did anyone present a scheduling order to the trial court.
Although the notice provided that failure to submit a scheduling order would
result in dismissal for want of prosecution, the trial court did not dismiss the
lawsuit at that time.
The trial court placed the case on the status conference docket for hearing
on May 24, 2010, and issued a notice instructing the parties to appear and be
prepared to discuss the status of the case and to set pretrial and trial dates. The
second notice stated that failure to appear would result in dismissal for want of
prosecution. Neither Real Parties nor their counsel appeared at the hearing.
The court placed the lawsuit on its status conference docket for July 12, 2010,
and issued a notice of status conference, again warning that failure to appear
would result in dismissal for want of prosecution. When neither Real Parties nor
their counsel appeared for the third status conference hearing, the trial court
signed its order dismissing the case for want of prosecution on July 12, 2010.
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On July 19, 2010, Real Parties timely filed a motion for reinstatement. The
motion for reinstatement was signed by their counsel of record and set forth that
he had a plumbing emergency on the date of the third scheduled hearing, that it
took much of the day, and that in the rush to attend to the emergency he forgot to
call the court, such that the failure to appear was not intentional nor the result of
conscious indifference but was the result of mistake or accident. Although the
motion and certificate of service were signed by Real Parties‘ counsel of record,
he did not verify or swear to the facts contained in the motion. Instead, the
motion contained an unsworn statement titled ―Verification‖ signed by another
individual not identified either as a party or as counsel for Real Parties.
On August 12, 2010, thirty-one days after the order of dismissal was
signed, Real Parties‘ counsel of record forwarded for filing a sworn affidavit dated
August 12, 2010, setting forth and swearing to the same facts set forth in the
motion to reinstate that he had previously filed. The clerk‘s computerized listing
of documents filed shows that the affidavit was filed on August 13, 2010.
Defendants, including Relator, filed written objections to the unsworn verification
to the motion to reinstate and to the late filing and content of the affidavit of Real
Parties‘ counsel. After a hearing on August 20, 2010, the trial court overruled the
defendants‘ objections and signed an order granting reinstatement on September
13, 2010.
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On April 2, 2012, Relator filed a motion to vacate the order reinstating the
lawsuit, and the trial court denied the motion on June 8, 2012. Relator seeks by
this mandamus proceeding to have the order reinstating the lawsuit vacated.
APPLICABLE LAW
A trial court has plenary power to reinstate a case within thirty days after it
signs an order of dismissal for want of prosecution. Tex. R. Civ. P. 165a(3), (4);
Neese v. Wray, 893 S.W.2d 169, 170 (Tex. App.―Houston [1st Dist.] 1995, no
writ) (recognizing trial court has plenary power to reinstate case within thirty days
of dismissal even in absence of motion to reinstate). A verified motion to
reinstate a case filed within thirty days of a dismissal for want of prosecution
extends the trial court‘s plenary power in the same manner as a motion for new
trial. Tex. R. Civ. P. 165a(3), (4). The Supreme Court of Texas has made clear,
however, that an unverified motion to reinstate is a nullity and does not extend
the trial court‘s plenary jurisdiction or the time in which to file a notice of appeal.
McConnell v. May, 800 S.W.2d 194, 194 (Tex. 1990) (orig. proceeding) (granting
mandamus relief to set aside order reinstating case more than thirty days after
dismissal on unverified motion); Butts v. Capitol City Nursing Home, Inc., 705
S.W.2d 696, 697 (Tex. 1986). The time limits provided in rule 165a are
mandatory and jurisdictional; orders of reinstatement entered after their
expiration are void. Harris Cnty. v. Miller, 576 S.W.2d 808, 809 (Tex. 1979) (orig.
proceeding); Danforth Mem’l Hosp. v. Harris, 573 S.W.2d 762, 763 (Tex. 1978)
(orig. proceeding); N-S-W Corp. v. Snell, 561 S.W.2d 798, 798 (Tex. 1977) (orig.
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proceeding); see United Residential Props., L.P. v. Theis, No. 14-11-00330-CV,
2012 WL 3573882, at *2 (Tex. App.―Houston [14th Dist.] Aug. 21, 2012, no
pet.).
To extend the trial court‘s plenary jurisdiction beyond thirty days from the
date of dismissal, rule 165a(3) requires that a motion to reinstate be ―verified by
the movant or his attorney‖ and be filed within thirty days after the signing of the
dismissal for want of prosecution. Tex. R. Civ. P. 165a(3); McConnell, 800
S.W.2d at 194; Butts, 705 S.W.2d at 697; see Hosea v. Whittenburg, 311 S.W.3d
704, 705 (Tex. App.―Amarillo 2010, pet. denied); Twist v. McAllen Nat’l Bank,
294 S.W.3d 255, 260 (Tex. App.―Corpus Christi 2009, no pet.). The motion for
reinstatement here was timely filed but not verified. Unless the late-filed affidavit
of Real Parties‘ attorney—filed after thirty days had expired from the date of the
dismissal order—sufficed as a substitute for a verification sufficient to support the
factual averments in the motion to reinstate, the motion did not extend the trial
court‘s plenary power, the order granting the motion to reinstate after the thirty-
day period had expired is void, and mandamus relief is appropriate. See In re
Brookshire Grocery Co., 250 S.W.3d 66, 68 (Tex. 2008) (orig. proceeding)
(―Mandamus relief is appropriate when a trial court issues an order after its
plenary power has expired.‖); Estate of Howley v. Haberman, 878 S.W.2d 139,
140 (Tex. 1994) (orig. proceeding) (mandamus will issue when trial court
erroneously reinstates case after expiration of its plenary jurisdiction); In re N.H.
Ins. Co., No. 02-12-00281-CV, 2012 WL 3264392, at *1–2 (Tex. App.—Fort
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Worth Aug. 13, 2012, orig. proceeding) (mem. op.) (conditionally granting writ of
mandamus to set aside void order reinstating suit after plenary power expired); In
re Strickland, No. 01-01-00972-CV, 2002 WL 58482, at *2 (Tex. App.―Houston
[1st Dist.] Jan. 17, 2002, orig. proceeding) (not designated for publication)
(same).
UNSWORN VERIFICATION
A statement labeled ―Verification‖ was signed on the last page of the
motion to reinstate, in which the signer stated that he had personal knowledge of
the facts recited in the motion, but the signer was not Real Parties‘ counsel of
record and is not identified as a party or as an attorney in the case, nor is the
statement sworn to. A verification is ―[a] formal declaration made in the presence
of an authorized officer, such as a notary public, by which one swears to the truth
of the statements in the document.‖ Andrews v. Stanton, 198 S.W.3d 4, 8 (Tex.
App.―El Paso 2006, no pet.) (quoting Black‘s Law Dictionary 1556 (7th ed.
1999)); see also Frazier v. Dikovitsky, 144 S.W.3d 146, 149 (Tex. App.—
Texarkana 2004, no pet.) (stating ―verified‖ under rule 107 requires
acknowledgement before a notary public‖); McGraw-Hill, Inc. v. Futrell, 823
S.W.2d 414, 416 (Tex. App.—Houston [1st Dist.] 1992, writ denied) (op. on reh‘g)
(stating that ―[a]n acknowledgment of an instrument before a notary public . . .
verifies it for [the] record‖).1 The statement purporting to verify the motion to
1
Verification must be based on personal knowledge. Tex. R. Evid. 602 (―A
witness may not testify to a matter unless . . . the witness has personal
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reinstate does not reveal how the signer had personal knowledge of counsel‘s
plumbing emergency or that he forgot to call the court.2
SIGNATURE OF COUNSEL
Nor was the signature of Real Parties‘ counsel of record on the motion
itself a sufficient verification, as Real Parties argued at the hearing on the motion
to vacate the reinstatement. An attorney‘s signature on a pleading certifies that
he has read the document and that to the best of his knowledge, information, and
belief, formed after reasonable inquiry, the instrument is not groundless and not
brought in bad faith or for the purpose of harassment. See Tex. R. Civ. P. 13.
The signature of the attorney is not the equivalent of a verification, which
represents the facts to be true and based upon personal knowledge. See
Luxenberg v. Marshall, 835 S.W.2d 136, 140 & n.3 (Tex. App.―Dallas 1992,
orig. proceeding) (distinguishing between groundless pleadings and false
affidavits). Moreover, even if counsel‘s bare signature could be considered a
knowledge of the matter.‖); see Marks v. St. Luke’s Episcopal Hosp., 319 S.W.3d
658, 666 (Tex. 2010) (op. on reh‘g). A party‘s attorney may verify the pleading
when he has personal knowledge of the facts, but he does not have authority to
verify based merely on his status as counsel. Twist, 294 S.W.3d at 262 (holding
personal knowledge required for verification of motion to reinstate); see Tex. R.
Civ. P. 14 (stating agent or attorney may verify facts). Cf. Gorrell v. Tide Prods.,
Inc., 532 S.W.2d 390, 395–96 (Tex. Civ. App.—Amarillo 1975, no writ) (holding
that a company officer who did not have personal knowledge of certain matters
could not deny them under oath since they would be hearsay as to him).
2
Incidentally, the verification also does not meet the requirements of civil
practice and remedies code section 132.001, which allows for an unsworn
declaration if the declaration meets the statute‘s requirements. See Tex. Civ.
Prac. & Rem. Code Ann. § 132.001 (West Supp. 2012).
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verification, the motion signed by Real Parties‘ counsel of record contained no
language indicating that he swore that the facts stated therein were true and
were based on his personal knowledge. Cf. Residential Dynamics, LLC v.
Loveless, 186 S.W.3d 192, 197 (Tex. App.—Fort Worth 2006, no pet.) (holding
affidavit was valid without jurat because it contained acknowledgement and
stated witness was ―sworn‖).
LATE-FILED AFFIDAVIT
Real Parties argue that the later-filed affidavit of their counsel of record
should be considered sufficient verification. They cite Guest v. Dixon, 195
S.W.3d 687, 688 (Tex. 2006), in which the supreme court held that the
verification requirement of rule 165a(3) was satisfied by an affidavit of the
movant‘s former attorney who had personal knowledge of most of the relevant
facts needed to support an unverified motion to reinstate. Real Parties also point
to several intermediate appellate court cases that signal a more liberal attitude
toward what constitutes sufficient verification under rule 165a. See Twist, 294
S.W.3d at 262 (―[A]n unverified motion to reinstate must be supported by an
affidavit or other sufficient evidence in the record . . . .‖) (quoting Silguero v.
State, 287 S.W.3d 146, 150 (Tex. App.―Corpus Christi 2009, orig. proceeding));
Andrews, 198 S.W.3d at 8 (holding timely-filed affidavit of counsel attached to
motion sufficient substitute for verification of motion); Fed. Lanes, Inc. v. City of
Houston, 905 S.W.2d 686, 689–90 (Tex. App.―Houston [1st Dist.] 1995, writ
denied) (holding timely-filed joint motion to reinstate within thirty days of
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dismissal equivalent to a stipulation and satisfied rule 165a); see also In re
Dobbins, 247 S.W.3d 394, 396–97 (Tex. App.―Dallas 2008, orig. proceeding)
(holding, despite unverified motion and lack of any supporting affidavit, that
combination of evidentiary hearing and court master‘s recommendation of
approval of motion within the thirty-day period after dismissal constituted
adequate substitute for verification).
Each of those cases is distinguishable. The affidavits held to constitute
substitutes for verification of the motions to reinstate in those cases were all filed
within the initial thirty-day period following the dismissal. In Dobbins, a hearing—
presumably with sworn testimony—was held within the initial thirty days and
resulted in a recommendation by the master within that same time frame. In
contrast, the affidavit of Real Parties‘ counsel of record was not filed until after
the expiration of the thirty-day period, and the hearing on the motion to reinstate
was not held until a month later. No affidavit or other evidence was filed within
thirty days after the dismissal that could be construed as a substitute for proper
and timely verification of the motion to reinstate as required by rule 165a(3) in
this case. In other words, to ―cure‖ an unverified motion to reinstate, an affidavit
or other evidence supporting the motion is acceptable, but it must be filed within
the same thirty-day period as required for filing of the motion to reinstate. See In
re Garcia, 94 S.W.3d 832, 833 (Tex. App.―Corpus Christi 2002, orig.
proceeding) (holding mandamus would be granted because unverified motion to
reinstate was not ―cured‖ by an affidavit filed after thirty days had expired); Owen
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v. Hodge, 874 S.W.2d 301, 303 (Tex. App.―Houston [1st Dist.] 1994, no writ)
(holding reinstatement properly denied on jurisdictional grounds when unverified
motion to reinstate was filed within thirty days but movant did not seek leave to
file verification until thirty-eight days after dismissal); see also In re Trinity
Universal Ins. Co. of Kan., No. 04-06-00471-CV, 2006 WL 2819767, at *1–2
(Tex. App.―San Antonio 2006, orig. proceeding) (mem. op.) (holding attorney‘s
verification filed after thirty days had expired could not cure unverified motion,
and attorney‘s signature on unverified motion to reinstate was not equivalent to
verification).
Although the supreme court admonished in Guest and has continued to
stress that courts should strive to reach the merits of cases when reasonably
possible and that litigants‘ rights (whether of appeal or of a day in court) should
not be lost based upon procedural technicalities,3 that line of cases has not
3
See Milestone Operating, Inc. v. ExxonMobil Corp., No. 11-0647, 2012
WL 5285085, at *2 (Tex. Oct. 26, 2012) (reversing default judgment and noting
court‘s policy that ―adjudication on the merits is preferred‖) (quoting Holt Atherton
Indus., Inc. v. Heine, 835 S.W.2d 80, 86 (Tex. 1992)); Americo Life, Inc. v. Myer,
356 S.W.3d 496, 498 (Tex. 2011) (reversing court of appeals‘s waiver holding);
Ditta v. Conte, 298 S.W.3d 187, 190 (Tex. 2009) (broadly construing issues so
that ―‗a just, fair[,] and equitable adjudication of the rights of the litigants‘ is
obtained‖); Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 784
(Tex. 2005) (reiterating that the appellate rules ―are designed to resolve appeals
on the merits, and we must interpret and apply them whenever possible to
achieve that aim‖); Gallagher v. Fire Ins. Exch., 950 S.W.2d 370, 370–71 (Tex.
1997) (reiterating commitment to ensuring that courts do not unfairly apply the
rules of appellate procedure to avoid addressing a party‘s meritorious claim);
Crown Life Ins. Co. v. Estate of Gonzalez, 820 S.W.2d 121, 121–22 (Tex. 1991)
(stating that procedural rules should be ―liberally construed so that the decisions
of the courts of appeals turn on substance rather than procedural technicality‖).
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overruled McConnell or Butts, and we remain bound by those decisions. An
unverified motion to reinstate is ineffective to extend the trial court‘s plenary
power beyond thirty days, and rule 165a provides no opportunity to cure the
deficiency by affidavit once the trial court‘s plenary power has expired. See
Lubbock Cnty. v. Trammel’s Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex.
2002) (holding court of appeals‘s function not to abrogate or modify established
precedent).
DELAY IN SEEKING MANDAMUS
Real Parties further argue that Relator was dilatory in failing to seek
mandamus relief for eighteen months with no explanation or excuse as to the
delay, participating in the lawsuit and discovery, and otherwise treating the case
as validly reinstated, all of which resulted in prejudice to Real Parties. Thus, they
contend that Relator slumbered on its rights or lay behind the log and thereby
waived its right to seek relief by mandamus. As to Real Parties‘ contention that
Relator lay behind the log regarding its position that the reinstatement was void
until it filed this proceeding, we note that the defendants, including Relator,
clearly addressed the same arguments raised in this court by their objections and
briefing filed in response to the motion to reinstate in the trial court in 2010. As to
Real Parties‘ contention that Relator should have appealed from the order
reinstating the lawsuit, no appeal was available from the order of reinstatement,
which merely placed the case back on the docket as though it had never been
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dismissed. It was neither a final judgment nor an interlocutory order from which
Relator was entitled appeal.
Moreover, doctrines such as laches, waiver, or estoppel are not applicable
when the order that is the subject of the mandamus proceeding is void. See In re
Aslam, 348 S.W.3d 299, 303 n.10 (Tex. App.—Fort Worth 2011, orig.
proceeding) (stating that laches does not preclude a challenge to a void order);
In re Chester, 309 S.W.3d 713, 718–19 (Tex. App.—Houston [14th Dist.] 2010,
orig. proceeding) (citing Zimmerman v. Ottis, 941 S.W.2d 259, 262 (Tex. App.—
Corpus Christi 1996, orig. proceeding) (―Since mandamus relief in the present
case is premised on the entry of a void order, it would not serve the interests of
justice or those of the parties to invoke laches as an excuse to ignore that order,
and thus to allow the parties to expend further time and effort in connection with
a lawsuit that must ultimately be dismissed . . . or reversed on appeal for want of
jurisdiction.‖); Twist, 294 S.W.3d at 263 (holding waiver did not apply when
defectively verified motion to reinstate failed to extend trial court‘s plenary power
or time limits for appeal).
For the reasons stated, we are constrained to hold that the unverified
motion to reinstate did not extend the trial court‘s plenary power beyond thirty
days after the dismissal was signed and that Real Parties‘ counsel‘s affidavit filed
after that period had expired was ineffective as an adequate substitute for
verification because rule 165a(3) plainly requires the verified motion to be filed
within thirty days. Because the trial court signed the order of reinstatement after
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its plenary power had expired, we hold that the order of reinstatement is void and
of no legal effect. We conditionally grant Relator‘s petition for writ of mandamus
and order that the trial court set aside its September 13, 2010 order of
reinstatement. The writ will issue only in the event the trial court fails to do so
within thirty days of the date of this opinion.
ANNE GARDNER
JUSTICE
EN BANC
DELIVERED: November 15, 2012
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